Ground Truth: Fire Truth, Sound Off

FSEEE Notifies Forest Service of Clean Water Act Lawsuit

Dumping aerial fire retardant into waterways violates federal law.

FSEEE has delivered a notice of intent to file a lawsuit against the Forest Service for violations of the Clean Water Act (CWA). The CWA prohibits the discharge of pollutants into U.S. waters without a permit, yet the Forest Service discharged more than 100 million gallons of fire retardant without a permit from 2012 to 2020.

In a draft environmental impact statement (EIS), the Forest Service admits that it and its contractors discharged retardant from aircraft directly into U.S. waterways on at least 376 occasions between 2012 and 2019. Fire retardant is a pollutant, and the agency’s use of retardant is ongoing and increasing, putting additional waters at risk from these illegal chemical dumps.

The Forest Service draft EIS states that fire retardant “may affect” 57 threatened and endangered aquatic species and is “likely to adversely affect” an additional 32 aquatic species. This determination of adverse effects for aquatic species further acknowledges that the Forest Service regularly discharges retardant pollution into waterways.

According to the Forest Service, a letter from the Environmental Protection Agency excuses the lack of a pollution discharge permit. However, the factual basis for the letter — “Operators … are not discharging into waters of the US” — is simply not true.

The CWA requires a notice of intent to file a lawsuit 60 days prior to filing suit against CWA violators. The FSEEE notice expresses a willingness to discuss effective remedies for these CWA violations during the 60-day notice period.

If those discussions are not forthcoming, FSEEE will seek a court injunction to prevent further violations of the CWA as well as penalties to enforce compliance. If the issue is not resolved through discussion and goes to court, FSEEE will also seek to recover costs associated with this case.